City Union Mission, Inc. v. Mike Sharp

United States Court of Appeals

For the Eighth Circuit

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No. 20-3435

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City Union Mission, Inc.

Plaintiff - Appellant

v.

Sheriff Mike Sharp; Jackson County Sheriff’s Office; Jackson County, Missouri

Defendants - Appellees

State of Missouri

Intervenor - Appellee

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Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: September 23, 2021

Filed: June 10, 2022

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Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.

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SHEPHERD, Circuit Judge.

City Union Mission is a Kansas City, Missouri nonprofit organization located

near Margaret Kemp Park that provides food, shelter, employment, and a Christian

discipleship program to poor and homeless individuals. A Missouri law prohibits

persons convicted of certain sex offenses (Affected Persons) from being present in

or loitering within 500 feet of any public park containing playground equipment.

After the Jackson County Sheriff’s Office informed City Union Mission that the

statute prohibited some of its guests from being present within 500 feet of the park,

even when receiving City Union Mission’s charitable services, City Union Mission

filed suit, bringing 12 claims against the Jackson County Sheriff’s Office, Jackson

County, and Sheriff Mike Sharp in his official capacity (collectively, the County),

as well as one claim against Sheriff Sharp in his individual capacity. The State of

Missouri (the State) intervened, and the district court1 ultimately dismissed City

Union Mission’s 12 claims against the County and granted summary judgment on

City Union Mission’s claim against Sheriff Sharp in his individual capacity, finding

that Sheriff Sharp was entitled to qualified immunity. City Union Mission appeals,

and having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I.

City Union Mission is a faith-based nonprofit organization that has operated

for over nine decades and serves Kansas City’s poorest individuals. Its services

include providing meals, overnight shelter, and occasionally, employment. City

Union Mission also offers a one-year, biblically based discipleship and rehabilitation

program called the Christian Life Program (CLP) for men seeking help with life

skills and addiction. City Union Mission occupies several properties, with a shelter

at 1108 East 10th Street, the CLP program at 1111 East 10th Street, and its

headquarters at 1100 East 11th Street. Margaret Kemp Park, a park containing

playground equipment, is also located on 10th Street and is within 500 feet of City

Union Mission’s shelter and headquarters locations.

Missouri law provides in relevant part that “[a]ny person who has been found

guilty of [certain enumerated sex crimes] . . . shall not knowingly be present in or

1

The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri.

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loiter within five hundred feet of any real property comprising any public park with

playground equipment . . . if such facilities exist for the primary use of recreation

for children.” Mo. Rev. Stat. § 566.150. Some of City Union Mission’s guests are

Affected Persons. In May 2016, the Jackson County Sheriff’s Office began

interpreting this statutory language as prohibiting Affected Persons from being

present at any of City Union Mission’s 3 locations because 2 of those locations are

within 500 feet of Margaret Kemp Park (the May 2016 Position). City Union

Mission alleged in its complaint that the Jackson County Sheriff’s Office

“prohibited . . . Affected Persons [from] be[ing] present on any [City Union] Mission

land . . . , even land outside the [500-foot] Zone,” and because of the May 2016

Position, City Union Mission “lost use of its facilities, as it could not minister to

Affected Persons on [City Union] Mission land” and “was denied the use of its

facilities, and prevented from offering services or help to Affected Persons, because

[City Union] Mission could be charged with conspiracy or aiding and abetting a

violation of § 566.150.” R. Doc. 1, at 10.

In September 2016, an officer from the Jackson County Sheriff’s Office

emailed City Union Mission, explaining that the Jackson County Sheriff’s Office

had revised its May 2016 Position and would now enforce the statute only against

Affected Persons present within 500 feet of Margaret Kemp Park, allowing City

Union Mission to provide services to Affected Persons at its 1111 East 10th Street

location but not at its other 2 locations. See R. Doc. 1, at 11. In February 2017, an

officer from the Jackson County Sheriff’s Office alerted City Union Mission that

Affected Persons were prohibited from maintaining employment at the 1108 East

10th Street location. See R. Doc. 1, at 11-12 (alleging Jackson County Sheriff’s

Office indicated that it “would issue a citation if the matter were not ‘cleared up’”).

In its complaint, City Union Mission alleged that because of the Jackson County

Sheriff’s Office’s interpretations, it had to reassign an Affected Person employed at

the 1108 East 10th Street location, post signs in its facilities alerting Affected

Persons of the Jackson County Sheriff’s Office’s interpretation, “[o]pen its doors for

‘sweeps’ by the Sheriff’s deputies,” turn away Affected Persons seeking its services,

and discontinue services for Affected Persons. See R. Doc. 1, at 12. Although City

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Union Mission asked the Jackson County Sheriff’s Office to reconsider its

interpretations and promise not to prosecute City Union Mission for aiding and

abetting Affected Persons in violating the statute, the parties could not reach a

resolution.

City Union Mission brought 12 claims against the County. Claims 1-6 were

brought pursuant to 42 U.S.C. § 1983, asserting: a First Amendment Free Exercise

Clause claim (Claim 1); a void-for-vagueness challenge pursuant to the First and

Fourteenth Amendments (Claim 2); an as-applied challenge pursuant to the First and

Fourteenth Amendments (Claim 3); a First Amendment Freedom of Assembly and

Association Clauses claim (Claim 4); a First Amendment Establishment Clause

claim (Claim 5); and a First and Fourteenth Amendment Free Exercise, Due Process,

and Equal Protection Clauses claim and a First and Fourteenth Amendment

discriminatory targeting claim (Claim 6). In Claims 7-12, City Union Mission

brought: a Religious Land Use and Institutionalized Persons Act (RLUIPA)

“substantial burden” claim (Claim 7); a RLUIPA “equal terms” claim (Claim 8); a

RLUIPA “discrimination” claim (Claim 9); a RLUIPA “unreasonable limitations”

claim (Claim 10); a Missouri Religious Freedom Restoration Act (Missouri RFRA)

claim (Claim 11); and a claim under Article I, §§ 2, 5, 9, and 10 of the Missouri

Constitution (Claim 12). City Union Mission also brought a claim against Sheriff

Sharp in his individual capacity, alleging that Sheriff Sharp violated the First

Amendment Free Exercise Clause (Claim 13). City Union Mission sought a

preliminary injunction against all defendants, as well as a declaratory judgment that

the statute was unconstitutionally vague, violated state or federal law, or was

unconstitutional as applied to City Union Mission and its employees and guests. In

Claim 13, City Union Mission sought nominal and actual damages from Sheriff

Sharp individually.

Because the constitutionality of the state statute was called into question, the

State intervened and moved to dismiss Claims 1-12 pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief could be granted.

The County similarly moved to dismiss Claims 1-13. The district court granted the

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State’s motion to dismiss, explaining that § 566.150 does not proscribe City Union

Mission’s conduct and that City Union Mission therefore failed to state a claim upon

which relief could be granted. It denied both the County’s motion to dismiss and

City Union Mission’s request for a preliminary injunction as moot. City Union

Mission then filed a motion with the district court requesting that the district court

amend its judgment or, alternatively, reconsider. The district court granted City

Union Mission’s motion to reconsider. In its amended order, the district court

reaffirmed its grant of the State’s motion to dismiss Claims 1-12, again denied the

County’s motion to dismiss as moot, but granted City Union Mission’s motion for a

preliminary injunction enjoining all defendants from enforcing or threatening to

enforce § 566.150 against City Union Mission or Affected Persons. At some point

during the pendency of this lawsuit, Sheriff Sharp resigned. After Sheriff Sharp’s

resignation, City Union Mission filed a motion with the district court asking the

district court to convert the preliminary injunction against the defendants into a

permanent injunction against Sheriff Sharp and Jackson County. The district court

denied this motion. See R. Doc. 113, at 4-7.

Following discovery, Sheriff Sharp filed a motion for summary judgment on

City Union Mission’s claim for damages against him in his individual capacity,

arguing that he was entitled to qualified immunity. The district court found that

Sheriff Sharp was entitled to qualified immunity, explaining that, at the time of

enforcement of the statute, there was no clearly established constitutional right for

City Union Mission to provide religious services to Affected Persons within 500 feet

of a park. See R. Doc. 135, at 5. The district court also explained that “there is no

basis to conclude that” Affected Persons receiving City Union Mission’s services

were not loitering. See R. Doc. 135, at 5.

II.

City Union Mission now appeals the district court’s dismissal of its claims

against the County and its grant of summary judgment in favor of Sheriff Sharp.

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A.

We first consider whether the district court erred in dismissing City Union

Mission’s 12 claims against the County, in which City Union Mission sought a

declaration that § 566.150 is unconstitutional as applied and that § 566.150 violates

the RLUIPA, Missouri’s RFRA, and the Missouri Constitution, as well as permanent

injunctive relief enjoining Sheriff Sharp and Jackson County from “enforcing or

threatening to enforce” § 566.150 against City Union Mission or Affected Persons.2

We apply a de novo standard of review, accept City Union Mission’s factual

allegations found in its complaint as true, and resolve all reasonable inferences in

favor of City Union Mission. See Park Irmat Drug Corp. v. Express Scripts Holding

Co., 911 F.3d 505, 512 (8th Cir. 2018).

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A claim is facially

plausible where the complaint contains enough facts such that the court can “draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” In re Pre-Filled

Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (alteration in

original) (quoting Iqbal, 556 U.S. at 678). This is a “context-specific task” in which

we must draw on our “judicial experience and common sense.” See McDonough v.

Anoka Cnty., 799 F.3d 931, 945 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 679).

First, we conclude that City Union Mission’s claims seeking broad injunctive

relief prohibiting Sheriff Sharp and Jackson County from “enforcing or threatening

to enforce” § 566.150 against City Union Mission or Affected Persons are moot.

2

At oral argument, City Union Mission abandoned its claim that the statute is

unconstitutional on its face.

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Sheriff Sharp has resigned and is no longer in a position to interpret and enforce

§ 566.150. Further, at oral argument, the County took the position that it will not

revive Sheriff Sharp’s interpretation of § 566.150 or prosecute Affected Persons for

seeking City Union Mission’s services. City Union Mission does not contend that

the County’s concession should not be accepted. Because “[f]ederal courts are not

empowered ‘to give opinions upon moot questions or abstract propositions, or to

declare principles or rules of law which cannot affect the matter in issue in the case

before it,’” we cannot issue the injunctive relief City Union Mission requests. See

Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004) (citation

omitted). The claims for injunctive relief should be dismissed.

Further, all parties agree that City Union Mission does not provide services in

Margaret Kemp Park, so the only language in § 566.150 potentially proscribing City

Union Mission’s activities is that which prohibits Affected Persons from knowingly

loitering within 500 feet of a park. See Mo. Rev. Stat. § 566.150 (prohibiting

Affected Persons from “knowingly be[ing] present in or loiter[ing] within five

hundred feet of . . . any public park with playground equipment”). However, as the

district court correctly noted, City Union Mission failed to allege in its complaint

that Affected Persons receiving its services are “loitering.” In fact, in its complaint,

City Union Mission expressly disclaimed that Affected Persons are loitering, stating:

“Plaintiff [City Union] Mission’s guests and clients, including Affected Persons,

while receiving or providing ministry services on [City Union] Mission premises, or

travelling to or from the [City Union] Mission for such ministry services, are not . . .

‘loitering’ within 500 feet of the park.” See R. Doc. 1, at 12. Further, in its briefing

before this Court, City Union Mission argued that “[c]learly established law showed

that persons availing themselves of ministry services or employment opportunities

at City Union Mission were not loitering,” see Appellant Br. 39, and at oral

argument, City Union Mission, the County, and the State all agreed that when

§ 566.150 is properly interpreted, Affected Persons are not “loitering” when they are

visiting City Union Mission’s properties to obtain shelter, worship, work, or

otherwise receive City Union Mission’s charitable services, rendering § 566.150

inapplicable. Because City Union Mission has not alleged—in fact, has expressly

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and repeatedly disavowed—that the statute applies to it, we cannot see how it has

stated a claim capable of surviving a motion to dismiss. As the district court

explained, “[i]n the absence of factual allegations giving rise to the reasonable

inference that Affected Persons seeking [City Union] Mission’s services within 500

feet of a park with playground equipment are loitering, [City Union] Mission does

not state a claim to challenge the constitutionality of § 566.150’s loitering

provision.” See R. Doc. 63, at 6. We agree and affirm the district court’s dismissal

of City Union Mission’s remaining claims against the County.

B.

Having resolved Claims 1-12, we move to the district court’s grant of

summary judgment in favor of Sheriff Sharp on Claim 13, applying a de novo

standard of review. See Dowden v. Cornerstone Nat’l Ins. Co., 11 F.4th 866, 872

(8th Cir. 2021). City Union Mission brought a First Amendment claim against

Sheriff Sharp pursuant to § 1983, alleging Sheriff Sharp violated its First

Amendment right to engage in religious ministry and, in addition to the injunctive

relief sought against all defendants, also sought nominal and actual damages.

Following discovery, Sheriff Sharp filed a motion for summary judgment and argued

that he was entitled to summary judgment based on qualified immunity. The district

court granted summary judgment, resolving its qualified immunity analysis on the

clearly established prong and finding that Sheriff Sharp was entitled to qualified

immunity. See R. Doc. 135, at 5. We agree.

“In determining whether an officer is entitled to qualified immunity, we apply

the familiar two-prong framework: first, ‘whether the plaintiff has stated a plausible

claim for violation of a constitutional or statutory right,’ and second, ‘whether the

right was clearly established at the time of the alleged infraction.’” Garang v. City

of Ames, 2 F.4th 1115, 1121 (8th Cir. 2021) (citation omitted). We are free to decide

which prong to address first, and unless we find both that the plaintiff has stated a

plausible claim for violation of a constitutional or statutory right and the right was

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clearly established at the time of the infraction, the defendant-officer is entitled to

qualified immunity. See Nord v. Walsh Cnty., 757 F.3d 734, 738-39 (8th Cir. 2014).

Here we begin with the second prong, asking whether, in 2016, City Union

Mission’s right to provide services to Affected Persons in a building located within

500 feet of a park with playground equipment was clearly established “such that

‘every reasonable official would understand that what he is doing is unlawful.’”

Ness v. City of Bloomington, 11 F.4th 914, 921 (8th Cir. 2021) (citation omitted).

When determining whether a right is clearly established, we do not view the law

with a high level of generality but instead “look for a controlling case or a robust

consensus of cases of persuasive authority. There need not be a prior case directly

on point, but ‘existing precedent must have placed the statutory or constitutional

question beyond debate.’” See Thurmond v. Andrews, 972 F.3d 1007, 1012 (8th

Cir. 2020) (citations omitted).

City Union Mission does not direct us to any case that clearly establishes its

constitutional right to provide services to Affected Persons within 500 feet of a park

with playground equipment. In its brief in this Court, City Union Mission begins by

citing two Supreme Court cases, Sause v. Bauer, 138 S. Ct. 2561 (2018), and Nieves

v. Bartlett, 139 S. Ct. 1715 (2019), for the proposition that “[t]he right to engage in

First Amendment religious activity in a private building . . . is clearly established.”

See Appellant Br. 39. City Union Mission then directs us to cases like City of

Chicago v. Morales, 527 U.S. 41 (1999), and Fields v. City of Omaha, 810 F.2d 830

(8th Cir. 1987), for the proposition that loitering, absent any criminal activity, is

constitutionally protected. However, these cases are not instructive. We are not

tasked with deciding whether the right to engage in First Amendment religious

activity in a private building or to loiter is clearly established. Instead, the at-issue

right is more complex: Section 566.150 is intended to protect children from Affected

Persons by prohibiting Affected Persons from loitering within 500 feet of Margaret

Kemp Park; Affected Persons wish to engage in religious activity and to receive

services at City Union Mission; and two of City Union Mission’s properties are

within 500 feet of Margaret Kemp Park. Sheriff Sharp was necessarily required to

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weigh these competing interests and determine how to apply § 566.150, and we can

find no “controlling case” or “robust consensus of cases of persuasive authority” that

would have notified Sheriff Sharp that Affected Persons had a clearly established

right to seek City Union Mission’s services in a building located within 500 feet of

a park containing playground equipment. See Thurmond, 972 F.3d at 1012 (citation

omitted); see also Ness, 11 F.4th at 921 (requiring the right to be clearly established

“such that ‘every reasonable official would understand that what he is doing is

unlawful’” (citation omitted)). We do not decide whether City Union Mission has

stated a plausible claim for a violation of a constitutional right because, even

assuming that it has, Sheriff Sharp is nevertheless entitled to qualified immunity.

See Nord, 757 F.3d at 738-39. And, finding that Sheriff Sharp is entitled to qualified

immunity, we affirm the district court’s grant of summary judgment. 3

III.

For the foregoing reasons, we affirm.

KOBES, Circuit Judge, concurring in part and concurring in the judgment.

The Supreme Court has repeatedly held that “loitering bans” are

unconstitutional under the Due Process Clause. See, e.g., Papachristou v. City of

3

In its argument in this Court, City Union Mission does not focus on the May

2016 Position, under which Sheriff Sharp prohibited all Affected Persons from

entering all City Union Mission properties, even the property located further than

500 feet from Margaret Kemp Park. City Union Mission also does not reframe the

question posed by the district court during its qualified immunity analysis: whether

there was a clearly established constitutional right to free exercise within 500 feet of

Margaret Kemp Park. See Appellant Br. 37-38. Instead, City Union Mission argues

only that it “had a clearly established constitutional right . . . to engage in free

exercise of religion within 500 feet of a park with playground equipment.”

Appellant Br. 37. Therefore, we consider only whether the right to provide services

to Affected Persons within 500 feet of Margaret Kemp Park was clearly established,

not whether the right to provide services to Affected Persons further than 500 feet

from Margaret Kemp Park was clearly established.

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Jacksonville, 405 U.S. 156, 171 (1972). It makes no difference that Missouri’s

loitering ban only applies to certain sex offenders, see City of Chicago v. Morales,

527 U.S. 41, 73 (1999) (plurality opinion) (enjoining loitering law for gang

members), or that the law is geographically limited, see Bell v. City of Winter Park,

745 F.3d 1318, 1325 (11th Cir. 2014) (holding that fifty-foot buffer zone that

prohibited loitering was unconstitutional). And, contrary to the majority, I don’t

think the fact that City Union Mission has “expressly and repeatedly disavowed”

that its members were loitering means it can’t challenge the statute. The very reason

that loitering bans are unconstitutional is that no one can give a precise definition of

“loitering,” allowing law enforcement to perform “arbitrary and erratic arrests and

convictions.” Papachristou, 405 U.S. at 162.

I concur in the judgment, however, because I agree that City Union Mission’s

claim is moot. City Union Mission requested an injunction preventing Jackson

County from enforcing § 566.150 against its members while they are participating

in religious services. But as the majority notes, both the County and the State have

expressly stated that the law doesn’t apply to City Union Mission’s members during

worship. Additionally, both the County and the State have said they have no plans

to enforce the law against City Union Mission. And Sheriff Sharp, who led the initial

“sweep” of arrests at City Union Mission, has since left office. Accordingly, the

unconstitutional conduct alleged by City Union Mission “could not reasonably be

expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 167, 190 (2000). City Union Mission’s requested injunctive relief is

therefore moot. See Prowse v. Payne, 984 F.3d 700, 703 (8th Cir. 2021) (requested

injunctive relief was moot when prison official expressly stated that prisoner would

continue to receive hormone therapy). 4

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4

I join the majority’s qualified immunity analysis in full.

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